Patrick v. McManus

14 Colo. 65 | Colo. | 1890

Mr. Justice Hayt

delivered the opinion of the court.

The answer filed in the cause was stricken out as a sham answer, and judgment thereupon entered for the plaintiff for the amount claimed in the complaint. Should such action of the court be sustained?

Whether the pleading was objectionable for other reasons than the one urged is not material. Appellee’s motion was based solely upon the claim that the answer was a sham one. That part of the code relating to sham answers reads as follows: “Sham and irrelevant answers and defenses, and so much of' any pleading as may be irrelevant, redundant, immaterial, or insufficient, may be stricken out upon motion, and upon such terms as the court, in its discretion, may impose.” Sec. 61.

“Sham pleading,” as defined by Chitty, is the pleading of a matter known by the party to be false, for the purpose of delay or other unworthy object. 1 Chit. PL 567. Bliss, in his work upon Code Pleadings, says that a “sham pleading” is one good in form and false in fact. Sec. 422. In Bouvier’s Law Dictionary a “sham plea ” is said to be one entered for the mere purpose of delay, concerning a matter which the pleader knows to be false. It will be seen, from these definitions, that the essential element of a sham plea is its falsity; and yet it is evident that not every false plea can be stricken out upon motion supported by affidavit, as this would be to substitute a trial to the court upon affidavits for a jury trial. An examination of decided cases shows that the courts have not adopted any uniform rule in reference to the nature of answers that may be stricken out upon motion as sham.

In Brown v. Lewis, 10 Ind. 232, it was decided that “if an answer is valid on its face, and no facts exist peculiarly within the knowledge of the court showing it to be a sham defense, it should not be stricken out upon affidavit of its falsity.” But in a subsequent case, it appearing that the defendant in response to interrogatories conceded his answer to the complaint to be false, it was held that it should be stricken out as sham. Beeson v. McConnaha, 12 Ind. 420. And this rule subsequently received the sanction of express statutory enactment. Lowe v. Thompson, 86 Ind. 503.

In California a plea of payment to a suit upon a promissory note was stricken out by the trial court upon affidavits showing the falsity of such plea, and the ntalafides of the defendants in pleading it, and such action was sustained upon appeal. Gostorfs v. Taafe, 18 Cal. 386. In People v. McCumber, 18 N. Y. 315, a defense consisting of denials of knowledge or information sufficient to form a belief as to several matters, and a qualified denial in direct terms of another allegation of the complaint, was stricken out as sham, the court holding that a defense otherwise good may, if false, be stricken out as sham, although duly verified, and this may now be considered as the general practice in New York. See Corbett v. Eno, 13 Abb. Pr. 65. So, also, in Minnesota it has been repeatedly held that a sham answer, although verified, may be stricken out upon proof of its falsity. Hayward v. Grant, 13 Minn. 165 (Gil. 154); Barker v. Foster, 29 Minn. 166; Lumber Co. v. Richardson, 31 Minn. 267.

In Torrence v. Strong, 4 Or. 39, it was decided that an answer good in form, and containing facts sufficient to constitute a defense, cannot be gotten rid of by demurrer, but that it may be stricken out as false. Tharin v. Seabrook, 6 S. C. 113, is- authority for saying that objection to sham defenses, ordinarily presents a question of fact to be determined on affidavits. If an answer is manifestly false, it may be stricken out as sham, although this power should be sparingly used, and only in cases free from doubt. It is the policy of the code “to suppress falsehood and secure truth in the pleadings,” and, as one means of securing such result, authority for striking out sham answers and defenses is given. In counties where the dockets are overburdened with causes, the temptation'to interpose sham answers, for the purpose of delay only, is great; and when it clearly appears that such answers are false in fact, according to the great weight of authority and reason, the court may, upon motion, strike them out. This power must, however, be ■ exercised with extreme caution; otherwise a trial to the court upon affidavits might be substituted for a jury trial. It cannot rightfully be exercised for the purpose of determining the truth or falsity of a defense upon conflicting evidence. The inquiry ought not to be extended in such cases further than may be necessary for the court to determine that such a conflict in fact exists; but where, as in this case, the material averments of the complaint are directly supported by affidavits positive in form, we think the defendant has no right to complain of an order requiring him to support his unverified answer by an affidavit of merits, and, upon failure to comply therewith, to have his pleading stricken from the files. And it would make no difference if a portion of this answer be treated as a counterclaim, as the code provision is directed not only against sham and irrelevant defenses, but to answers as well, and the counter-claim must be considered as a part of the answer. Any other construction would permit defendants to evade the consequences of the act, and delay judgment, by interposing sham counter-claims instead of sham defenses.

It requires no argument to show that the affidavit of defendant in support of his answer in this case does not amount to an affidavit of merits. It does not deny the execution of the note. On the contrary, the due execution thereof is admitted under the pleadings, a copy of the note appearing in the complaint, and the answer thereto not having been verified. The affidavit does not state that the note has been paid. It merely alleges that on a prior occasion Patrick claimed that his wife had paid it. Neither does it contain an averment that plaintiff has a set-off of any kind or nature whatsoever, affiant contenting himself with the statement that he at one time claimed to have set-offs more than sufficient to pay the note in full, and that if sued he would set the same up in defense. This so-called affidavit of merits is clearly insufficient; it fails to state any fact showing, or tending to show, the truth of the answer: It does not even state that the answer is interposed in good faith, or that his attorney, after being informed of the facts, has advised him that he has a meritorious defense to the action. The affidavit is so entirely lacking in the essential requisites of such a paper that the court below, in deference to well-established rules, was bound to disregard it in the determination of plaintiff’s motion. Wedderspoon v. Rogers, 32 Cal. 569; Kaufman v. Mining Co. 105 Pa. St. 541; McCracken v. Congregation, 111 Pa. St. 106; King v. Stewart, 48 Iowa, 334.

The judgment of the court below is accordingly affirmed.

Affirmed.